IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA

fCORAM: JUMA. C.J.. MWARI3A. J.A. And NDIKA.J.A.3

CIVIL APPEAL NO. 55 OF 2017

YAKOBO MAGOIGA GICHERE....................................................................... APPELLANT

VERSUS
PENINAH YUSUPH.................................................................................... RESPONDENT

(Appeal from the Decision of the High Court of Tanzania

at Mwanza)

(Hon. Mwangesi 3.)

dated the 23rd day of May, & 29th August, 2013

in
Land Appeal No. 25 of 2012

JUDGMENT OF THE COURT

5th& 10th October, 2018

JUMA. C.J.:

On 16th May 2011 Yakobo Magoiga Kichere, who is the appellant in this

appeal, appeared before the Ward Tribunal for Turwa Ward in Tarime

District to complain that Penina Yusuph Werema, who is the respondent,

had invaded his family's three-acres parcel of land in the village of Nkende

where his father, one Mzee Magoiga Gichere and his family, had once lived

since 1970; and where they had planted mangoes, guavas and other trees.

The appellant asserted that his father did not surrender his claim over the

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disputed land when he and the family relocated from the village of Nkende

to a neighbouring village of Rebu in 1995. The appellant added that his

family still owned the disputed land up to sometime in 2005 when he left

the village to engage in the trading of hides and skins elsewhere, but he

left its supervision to his neighbour, one Mzee Matiko Gicheine. He

complained that it was in 2006 when the respondent trespassed and began

farming and putting foundations for houses on the disputed land. His

attempt in 2010 to prevent the respondent from building a permanent

house did not succeed.

Respondent, on the other hand, traced her claim back to 1986 when

the appellant's father relocated to a neighbouring village of Rebu. That

same year the Village Land Committee for Nkende village formally allocated

the disputed land to her late husband, one Yusuph Weremi Wang'era. At

the time of the hand-over, the disputed land had eucalyptus trees, two

mango trees and local trees known as "IMIRIBHA". The respondent staked

a claim that her family became the owner of the disputed land from 1986.

It was in 1995 when she finally relocated to the disputed land, which

belonged to her family. And that she remained on the disputed land right

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up to 03/05/2011 when she was summoned to appear before the Ward

Tribunal.

In its decision, the Ward Tribunal found in favour of the appellant,

whose family, the Tribunal found; was living in the disputed land until 2006

when the respondent began to build a house and dividing up some of the

land for sale.

Aggrieved by the decision of the Ward Tribunal, the respondent

preferred an appeal (Appeal No. 49 of 2011) to the District Land and

Housing Tribunal for Tarime (District Land Tribunal) based on six grounds

of appeal. Through these grounds, the respondent claimed that the

appellant's claim is not supported by any evidence and faulted the Ward

Tribunal for failing to evaluate evidence before reaching its decision in

favour of the appellant. The respondent was also unsuccessful, the District

Land Tribunal supported the Ward Tribunal's earlier decision.

Being dissatisfied with the decision of the District Land Tribunal the

respondent filed a second appeal in the High Court at Mwanza (Land

Appeal No. 25 of 2012) which she based on five grounds, which may be

paraphrased as follows:
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 1) The D istrict Land Tribunal had retied on facts which were not
part o f evidence on record.

2) The respondent had no letters o f adm inistration to sue on

behalf o f the estate o f his late father.

3) The respondent's claim at the tria l Ward Tribunal over

disputed land was time barred because the appellant was already
in occupation for more than twenty years.

4) The D istrict Land Tribunal had relied on speculative evidence

that the appellant's witness (SU2) unlaw fully allocated the land
white the owner was s till on the same land.

5) The D istrict Land Tribunal delivering a conflicting decision , on

one hand finding that the disputed belonged to the respondent's
fam ily, while also saying that the land belonged to the
respondent.

The decision of the High Court turned the tide against the appellant.

Mwangesi, J. (as he then was) was convinced he should interfere with

concurrent finding of facts reached earlier by the Ward Tribunal and the

District Land Tribunal. He found that the evidence in favour of the

respondent outweighed that presented in support of the appellant. The

learned Judge was convinced that the respondent's husband, Yusufu

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Werema, was actually assigned the disputed plot by the Village Council of

Nkende in 1986, and that there was no proof that the respondent

encroached the disputed land much later in 2006. Thus, he found that the

respondent's family had been in occupation of the disputed land without

interference from 1986 to 2011 when the appellant lodged his complaint in

the Ward Tribunal of Turwa. On the weight of this evidence, Mwangesi, J.

(as he then was) allowed the respondent's appeal.

Before coming to this Court; the appellant first applied for, and

obtained under section 47 (2) of the Land Disputes Act, a Certificate from

the High Court certifying that there is point of law involved in this appeal.

In his memorandum of appeal the appellant has raised three grounds of

appeal:

1. That, the High Court judge erred in law to hold that the
dispute arose in 1986 basing his decision on:-

(i) Exhibit D1 which exhibit was tendered in contravention

o f la id down legal procedures and as such denied the
appellant rights to be heard contrary to the rules o f natural
justice before the same was adm itted to form part o f the
record.

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 (ii) Erroneously failing to appraise evidence in record by
holding that the testim ony o f Chacha Marwa Nsiage (DW2)
and with the testim ony o f Rhobi Mugosi (DW3)
corroborated exhibit D1 contrary to evidence on record
hence occasioned failure o fjustice.

2. That the learned High Courtjudge erred in law to disturb the

concurrent findings o f the two low er courts without

dem onstrating which principle was violated by the two courts

below hence occasioned failure o fjustice.

3. That the learned High Court judge erred in law for failure to

see and hold that the Ward Tribunal o f Turwa was not properly

constituted.

When the appeal came up for hearing on 5th October, 2018, Mr.

Mashaka Fadhili Tuguta the learned counsel appeared for the appellant,

and Mr. Anthony Nasimire the learned counsel for the respondent. Both

counsel confirmed that the parties had filed respective written submissions.

Before we allowed Mr. Tuguta to address the Court, we asked him

whether the three grounds of appeal he had preferred substantially reflect

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what the High Court had certified to be points of law involved in this

appeal. After reflecting on each of the three grounds of appeal, Mr. Tuguta

abandoned grounds one and two of appeal, which he conceded were not

certified by the High Court. He remained with only the third ground of

appeal which faulted the second appellate Judge for failing to hold that the

Ward Tribunal of Turwa was not properly constituted.

In our opinion, the learned counsel for the appellant properly

abandoned the two grounds of appeal for lack of certification by the High

Court. Certificate from the High Court is mandatory for appeals originating

from Ward Tribunals, and should not be taken perfunctorily or lightly by

the certifying High Court and by the parties to the impending appeal. A

Certificate of the High Court predicates the jurisdiction of the Court in land

matters, so much so, this Court has oftentimes stated that a decision of the

High Court refusing to grant a certificate on a point of law under section

47(2) of Land Disputes Courts Act, is final and no appeal against it lies to

this Court: (see—TIMOTHY ALVIN KAHOHO V. SALUM ADAM

MFIKIRWA, CIVIL APPLICATION NO. 215 OF 2013 (unreported). To

underscore the significance of the Certificate, we may add that where the

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High Court has certified points of law in appeals originating from Ward

Tribunals, the grounds of appeal filed in the Court must substantially

conform to the points of law which the High Court has certified.

In retrospect, the High Court (De-Mello, J.) certified the following

three points of law:

(a) - The Ward Tribunal o f Turwa in Tarime D istrict was not

properly constituted.

(b) -The Ward Tribunal o f Turwa had two judgm ents with two
different versions hence constituting the abuse o fjustice in the
said Turwa Ward Tribunal.

(c) That the appellate High Court erred in law for failure to
properly compute the lim itation to institute and application in
the Wards Tribunal by the applicant even failed to impute the
applicant's age o f his trees he developed on the disputed land
and this is ju st to mention a few.

As it is obvious from the paragraphs above, only the third ground of

appeal substantially conforms to the issue of law which De-Mello, J certified

under paragraph (a), i.e. whether the Ward Tribunal for Turwa in Tarime

District was properly constituted.

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 On the certified ground of appeal Mr. Tuguta premised his submission

by acknowledging that composition of Ward Tribunals is provided for under

two Statutes: the Ward Tribunals Act, Cap 206 and the Land Disputes

Courts Act, Cap 216. He further submitted that section 4(1) (a) of Cap 206

and section 11 of Cap 216 provide that every Ward Tribunal shall consist of

not less than four and not more than eight members, section 11 of Cap

216 provides that three of the members of the Ward Tribunal should be

women.

The learned counsel believed that the Ward Tribunal lacked jurisdiction

because the record shows that on several occasions, neither the Chairman

nor any member appointed to preside, presided over the proceedings of

the Tribunal. This gap made vitiated the proceedings and the resulting

decision of the Tribunal. He illustrated his point by referring us to what

transpired in the Ward Tribunal on 16/05/2011 appearing on page 97 of

the record of appeal. On this day, one Juma Michael Ghati who was

supposed to preside as Chairman is marked absent on account of being ill.

Neither the Chairman nor any member appointed to be a presiding

member appears in the proceedings on 24/05/2011 on page 102 of the

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record of appeal. He submitted that it was only in the later proceedings of

the Ward Tribunal when one Catherine Gabriel, appears as Chairperson of

the proceedings to make those chaired proceedings valid.

Mr. Tuguta referred us to section 4 (4) of Cap 206 to underscore his

point that proceedings of the Tribunal which were neither presided by the

Chairman nor by a presiding member appointed for that purpose, were a

nullity and no appeal can in law come from such vitiated proceedings. He

submitted that the significance of recording the presence of the Chairman

or presiding member comes out if one looks at section 4 (4) of Cap 206

which states that in the event of equality of votes; the Chairman retains a

casting vote in addition to his original vote. He submitted that because the

Chairman did not preside any sitting of the Tribunal, and did not take part

in the final decision of the Tribunal, the entire proceedings are a nullity.

When the Court asked the learned counsel whether the provisions of

section 45 of the Land Disputes Courts Act prescribing substantive justice

will save the errors he has pointed out, he stood his ground to insist that

the proceedings and the decision of the Ward Tribunal for Turwa were a

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t
nullity; and subsequent first, second and this third appeals are all

incompetent.

In response, Mr. Nasimire submitted that this is one of the appeals

which have confused him. He cannot figure out how the appellant can

attack the jurisdiction of the Ward Tribunal whose decision was in his

favour by declaring him the owner of the disputed land. The learned

counsel for the respondent surmised that the appellant must have raised

this ground of appeal inadvertently.

Having said above, Mr. Nasimire submitted that the failure of the

record to mention who chaired or presided over the proceedings of the

Ward Tribunal did not occasion injustice to the appellant or to the

respondent. He urged the Court to find that as long as the Tribunal had the

quorum of members, its decision is lawful. He pointed out that neither the

Ward Tribunal Act, Cap 206 nor the Land Disputes Courts Act, Cap 216 has

specifically stated that the record of proceedings should mention the

attendance of either the Chairman or in his absence, attendance of any

member appointed by the members to preside in the absence of the

Chairman. He submitted that as long as the composition of the Ward

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Tribunal complied with the threshold of not less than four members and

not more than eight members provided under section 11 of the Land

Disputes Courts Act, the proceedings of the Tribunal should not be

annulled.

Mr. Nasimire went further and submitted that justice was served and

parties were heard by the Ward Tribunal. For the sake of argument, he

submitted that even if there was any provision directing the mention of a

presiding member, section 45 of the Land Disputes Courts Act governing

substantial justice would save the anomaly on the basis of overriding needs

for attaining the substantive justice.

In conclusion, the learned counsel for the respondent urged us to

dismiss the appeal. He did not press for costs.

In rejoinder, Mr. Tuguta for the appellant reiterated his earlier stand,

that the failure of the record of proceedings to show which member

presided in the absence of the Chairman, denied the Ward Tribunal any

semblance of jurisdiction.

After hearing the submissions of the two learned counsel, we are of

the decided view that the Court should not read additional procedural
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technicalities into the simple and accessible way Ward Tribunals in

Tanzania conduct their daily businesses. The learned counsel for the

appellant has conceded, rightly so, that section 4(4) of the Wards Tribunal

Act upon which he staked his proposition that the Ward Tribunal for Turwa

was not properly constituted, does not prescribe that the record of the

proceedings must show the member who presided the proceedings when

the Chairman was marked absent. The learned counsel further conceded

that throughout its sessions the Ward Tribunal had maintained the

composition of members as is prescribed under section 11 of the Land

Disputes Courts Act, which states:

"11. Each Tribunal shall consist o f not less than four nor more
than eight members o f whom three shall be women who shall
be elected by a Ward Committee as provided for under
section 4 o f the Ward Tribunals A ct."

With the advent of the principle of Overriding Objective brought by the

Written Laws (Miscellaneous Amendments) (No. 3) Act, 2018 [ACT No. 8 of

2018] which now requires the courts to deal with cases justly, and to have

regard to substantive justice; section 45 of the Land Disputes Courts Act

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should be given more prominence to cut back on over-reliance on

procedural technicalities. Section 45 provides:

"5. 45. - N o d e cisio n o r o rd e r o f a W ard T rib u n a l or

D istrict Land and Housing Tribunal s h a ll be re v e rse d o r
a lte re d on a p p e a l o r re v isio n on a cco u n t o f a n v erro r,
o m issio n o r irre g u la rity in the proceedings before or during
the hearing or in such decision or order or on account o f the
im proper admission or rejection o f any evidence u n le ss such
e rro r ; o m issio n o r irre g u la rity o r im p ro p e r ad m issio n o r
re je ctio n o f evid en ce h as in fa c t o ccasio n ed a fa ilu re o f
ju stic e ." [Emphasis].

Section 13 of the Land Disputes Courts Act underscores the spirit of

simplicity and accessibility of Ward Tribunals, by reminding all and sundry

that the primary functions of each Ward Tribunal is to secure peace and

harmony, mediating between and assisting the parties to reach amicable

settlements. That harmonious spirit cannot be attained if this Court

accedes to the prayer of the appellant's learned counsel to prescribe

judicially that record of proceedings should mention the member who

presided the proceedings of the Ward Tribunal when the Chairman is

absent for any reason.

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 In the upshot, failure to identify the member who presided over the

proceedings of the Ward Tribunal when the Chairman was absent, did not

occasion any failure of justice to the appellant. If anything, it was the

appellant who benefitted from the proceedings.

The final order of the Court is that this Appeal is dismissed in its

entirety. Each party shall bear its own costs.

DATED at MWANZA this 9th day of October, 2018.

I. H. JUMA
CHIEF JUSTICE

A. G. MWARIJA
JUSTICE OF APPEAL

G. A.M. NDIKA
JUSTICE OF APPEAL

I certify that this is a true copy of the original.

S. J. Kainda
DEPUTY REGISTRAR
COURT OF APPEAL

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